RE HOANG KIM DUNG

CACV 334/2022, [2023] HKCA 603

On Appeal From [2022] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 334 OF 2022

(ON APPEAL FROM HCAL NO. 2143 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge K W Lung of 9 August 2022.  The Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 23 November 2018, which dismissed her appeal against the decision of the Director of Immigration (the ‘Director’) dated 20 March 2017 rejecting her claim for non‑refoulement protection under all applicable grounds.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  Despite the directions from the Registrar of Civil Appeals to the applicant dated 19 August 2022, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court will deal with this appeal on paper based on the available documents. 

II.  Background

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally in September 2015 and made a non‑refoulement claim subsequently.  She raised a non‑refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by creditors from whom she had borrowed money.

4.  The background facts have been summarised by the Judge at [3­‑6] of the Judge’s Decision.

III.  The Director’s Decision

5.  The Director’s decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.  After a hearing held on 2 October 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.  The Board found many notable discrepancies in her evidence.  The Board did not accept the applicant’s allegation of being harassed by her creditors for repayment of money.  The applicant’s allegations during the hearing did not match with what was written in her non-refoulement claim form.  All that the applicant could say was that she forgot whenever the Board pointed out any inconsistency in her evidence.  The Board was not satisfied that the applicant faced a real risk of harm if the applicant is returned to Vietnam.  No credence could be attached to the applicant’s evidence.

V.  Decision of the Judge

8.  The applicant filed a Form 86 and a supporting affirmation on 26 September 2018. She complained that as she had borrowed from creditors to open a fashion shop and the interest was too high, she could not afford to repay and was threatened by the creditors.

9.  The applicant did not request an oral hearing.  The Judge dealt with her application on paper.

10.  The Judge held that the applicant has provided no reasonable grounds to overturn the decisions of the Director and the Board. 

11.  The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

12.  In the Notice of Appeal filed on 19 August 2022, the applicant stated that the gravity of her circumstances have not been realized or weighed.  She complained that internal relocation was not possible.  She complained that she will be harmed or killed by Vietnam creditors if she returned to Vietnam.

13.  In the supporting affirmation filed on 19 August 2022, the applicant simply stated that she had a good ground of appeal which was not properly considered at the stage of applying for judicial review.

VII.   Our view

14.  In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

15.  We will repeat the approach of this Court in dealing with cases of this nature :

1)  The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in their decisions.

2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge. In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.